IMPEACHMENTS

II.167.1

IMPEACHMENTS (IN U. S. HISTORY). The constitution only provides that the house of representatives shall have the sole power of impeachment of the president, vice-president, and "all civil officers of the United States"; that the senate shall have the sole power to try impeachments; that judgment, to be given by two-thirds of the senators present, shall only involve removal from, and disqualification to hold, office under the United States; that a person convicted shall not be pardoned by the president, and shall still be liable to indictment and punishment at law. When the president of the United States is tried, the chief justice presides over the senate.

II.167.2

—The constitution has not attempted to ascertain and classify the offenses which are impeachable. It has only stated (Art. I., §3, ¶7) that "the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law;" and (Art. II., § 4) that "the president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." From this omission of specification two antagonistic opinions have arisen. 1. It is held that the power of impeachment extends only to such offenders as may afterward be indicted and punished according to law: that is, that the house can only impeach, and the senate remove, for indictable offenses. This would make the power of impeachment defined and circumscribed. 2. On the contrary, it is held that the phrase "high crimes and misdemeanors" was intentionally left undefined in order that the power of impeachment might embrace not only indictable offenses, but also that wider and vaguer class of political offenses which the ordinary courts of law can not reach. This would make the power of impeachment under the American constitution closely similar to that which has been exercised under the British constitution. It would then include all misdemeanors which might seem to a majority of the house, and to two-thirds of the senate, so heinous or so disgraceful as to make the offender's exclusion from office necessary to the well-being of the country; and the punitive effect of the popular vote would be relied upon to deter a dominant party from abusing the power for selfish ends. The best results have probably been reached by leaving the question open to individual judgment.

II.167.3

—Many minor questions are still unsettled, and will probably long remain so. 1. It can not be considered settled that an office-holder may escape impeachment for acts done while in office, by resignation, expulsion, or the close of his term of office. The point was made, but not decided, in Blount's case (see I.), and although it prevented a two-thirds majority in Belknap's case (see VII.), the power of impeachment was there maintained by a very decided majority of the senators, including nearly all the ablest lawyers of the senate. On the one hand is the provision that only "civil officers" are liable to impeachment; and the conjunction of "removal from office and disqualification" would seem to imply that the removal was the first essential to punishment, and that disqualification could not be inflicted where removal had for any reason become impossible. On the other hand is the obvious objection, on the score of public policy, to allowing a suddenly discovered criminal in office to escape impeachment by an aptly timed resignation. 2. Blount's case has apparently settled that senators and representatives are not impeachable; but the decision in that case was made against strong opposition at the time, and has been repeatedly objected to since. In favor of the decision is the language of the constitution; it limits the power of impeachment to "the president, vice-president, and all civil officers," but in other places mentions members of congress and "civil officers" in distinct categories. Against it is the decision by the senate, in January, 1864, that an oath prescribed for "civil officers, "by the act of July 2, 1862, must be taken by senators also. 3. The power of the senate to arrest the accused, or "sequester" or suspend him from office, pending judgment on the impeachment, is very doubtful, and is defended mainly by parallel with the practice in English impeachments. The language of some of the framers of the constitution and their contemporaries, however, goes to show that they considered the power of suspension to be in the senate; and Senator Sumner, on Johnson's trial, argued that the selection of the chief justice to preside over the trial of a president was not because the vice-president was supposed to be an interested party, but because he was presumed to be engaged in performing the duties of the president during the necessary suspension of the latter from office. The power of arrest was exercised by the senate, though under peculiar circumstances, in Blount's case. It is, however, usually a power not necessary to secure attendance, since the only judgment in case of conviction is the stigma of inability to bold office, and punishment does not extend to death or deprivation of property; nor, in any event, is the attendance of the accused necessary; since he may be tried and condemned in his absence, as in Blount's, Pickering's and Humphreys' cases. (See I., II., V.) 4 Can an unjust conviction on impeachment ever be reversed by a subsequent congress? This is a question which has never been raised, and the now acknowledged equity of the whole line of senatorial decisions in impeachment cases gives strong reason for hope that it will never be necessary to raise it.

II.167.4

—The impeachment cases in our national history are given below. It has not been considered necessary to go into impeachments by state legislatures, but reference is made among the authorities to several important cases of this kind—I. WILLIAM BLOUNT. July 3, 1797, the president sent to congress a number of papers on the relations of the United States and Spain. Among them was a letter from United States Senator Blount, of Tennessee, to an Indian agent among the Cherokees, from which it appeared that Blount was engaged in a conspiracy to transfer New Orleans and the neighboring territory from Spain to Great Britain, by means of a British fleet and a land force to be furnished by Blount. On receipt of notice that the house intended to impeach him, the senate at first put him under $50,000 bonds to appear for trial, but afterward expelled him, July 9. His sureties then surrendered him to the senate, but he was again released on decreased bail. The whole of the next session, Nov. 13, 1797—July 16, 1798, hardly sufficed for the preparation of the five articles of impeachment, which were finally brought to trial, Dec. 24, 1798. Blount, who had in the meantime been elected to the senate of his state, did not appear, but his counsel plead, 1, that, as senator, he was not a "civil officer" liable to impeachment, and, 2, that, since his expulsion he was no longer a senator. The senate sustained the first plea, and Blount was acquitted for want of jurisdiction.

II.167.5

—II. JOHN PICKERING. March 3, 1803, the house impeached Judge Pickering, of the federal district court for the district of New Hampshire. The four articles against him charged him with decisions contrary to law, and with drunkenness and profanity on the bench, and were tried by the senate at once. Judge Pickering did not appear, but his son attempted to prove his father's insanity. The managers on the part of the house, in reply, maintained that the insanity was a consequence of his habitual drunkenness. He was convicted March 12, by a party vote, the federalists voting in the negative, and removed; the further disqualification to hold office was not inflicted.

II.167.6

—III. SAMUEL CHASE. One of the ablest of the federal justices of the supreme court was Chase, of Maryland, appointed Jan. 27, 1796. The practice of adding disquisitions on current politics to charges to grand juries was then common with American judges, as it had long been in Great Britain; and after the downfall of the federal party in 1801 Chase kept up the practice with a bitterness and ability equally displeasing to the dominant party. In the house, Jan. 5, 1804, Randolph obtained a committee to investigate Chase's official conduct; and on their report Chase was impeached, Nov. 30, 1804, and Randolph was appointed chief manager. The articles of impeachment were presented to the senate, Dec. 7, 1804, and the trial was begun Jan. 2, 1805. There were eight articles. 1, for arbitrary and unjust conduct in the trial of John Fries for high treason, in April, 1800, in refusing to allow the prisoner's counsel to argue various law points, and in announcing his opinion as already formed, so that the prisoner's counsel threw up the case; 2. for refusing to excuse a juror who had prejudged the guilt of J. T. Callender, in a trial under the sedition law, in May, 1800, at Richmond; 3, for refusing to allow one of Callender's witnesses to testify; 4, for interrupting and annoying Callender's counsel, so that they abandoned his case; 5, for arresting, instead of summoning, Callender in a case not capital; 6, for refusing to allow Callender a postponement of his trial; 7, for urging an unwilling Delaware grand jury to find indictments under the sedition law; and 8, for "highly indecent and extra-judicial" reflections upon the government of the United States before a Maryland grand jury. The eighth article covered his real offense; the others were the fruits of the committee's zealous research into his past official life.

II.167.7

—The defense disproved very much of the matter alleged, and as to the remainder Chase's counsel argued successfully that his conduct had been "rather a violation of the principles of politeness than of the principles of law; rather the want of decorum than the commission of a high crime and misdemeanor." On the 3d, 4th and 8th articles Chase was pronounced guilty by a small majority, the largest, 19 to 15, on the 8th; on the other articles a majority found him not guilty; and as a two-thirds majority was not given for any article, he was pronounced not guilty on all, March 1, 1805. The result of the trial led to some efforts on the part of the democratic leaders to change the tenure of federal judges. (See JUDICIARY, VII.) Judge Chase held his seat on the bench until his death, June 19, 1811.

II.167.8

—IV. JAMES H. PECK. Dec. 13, 1830, Judge Peck, of the federal district court for the district of Missouri, was tried on an impeachment passed by the house at the previous session. The article against him alleged arbitrary conduct, in 1827, in punishing for contempt of court an attorney who had published a criticism of Judge Peck's opinion in a land case. In this case the vote of the senate was 21 guilty, 24 not guilty, and Judge Peck was acquitted—V. WEST H. HUMPHREYS. At the outbreak of the rebellion the district judges of the federal courts in the seceding states, and one of the justices of the supreme court (James A. Campbell, of Alabama), resigned. Justices Catron, of Tennessee, and Wayne, of Georgia, notwithstanding the secession of their states, retained their positions as justices of the supreme court, and their loyalty was never questioned. On the other hand, Judge Humphreys, of the federal district court of Tennessee, while actively engaged in the rebellion, had not resigned, and impeachment became necessary in order to vacate his position. Recourse was had to a secession speech made by him in Nashville, Dec. 29, 1860, and this, and his acceptance of the office of confederate judge, were made the basis of seven articles of impeachment by the house, on which he was convicted by a unanimous vote of the senate, June 26, 1862—VI. ANDREW JOHNSON. Jan. 7, 1867, Jas. M. Ashley, of Ohio, submitted a resolution in the house directing the judiciary committee to investigate his charge that President Johnson had corruptly used the appointing power, the pardoning power, the veto power, and the public property, and had corruptly interfered in elections. The house adopted the resolution, and five of the nine members of the committee reported, Nov. 25, 1867, in favor of impeachment. Their resolution to that effect was lost, Dec. 7, by a vote of 56 to 109.

II.167.9

—In March, 1867, congress had enacted (see TENURE OF OFFICE) that civil officers "holding or hereafter to be appointed" to any office by confirmation of the senate, should retain office until a successor should be confirmed by the senate, except that cabinet officers, unless removed by consent of the senate, should "hold their offices for and during the term of the president by whom they may have been appointed, and for one month thereafter." At the same time congress had practically taken the command of the army from the president (see RECONSTRUCTION), and had made the secretary of war really independent of, as well as irremovable by, the executive.

II.167.10

—All the cabinet, except the secretary of war, E. M. Stanton, seem to have been in sympathy with the president in March, but the estrangement between Stanton and Johnson increased so rapidly that the president suspended the secretary of war, Aug. 12, 1867, as he was allowed to do, by the tenure of office act, while the senate was not in session, and appointed the general of the army, U. S. Grant, secretary ad interim. Within twenty days after the senate should meet, the president was required by the tenure of office act to lay before the senate his reasons for any suspension during its intermission; in Stanton's case he did so, and the senate, Jan. 13, 1868, by a party vote of 35 to 6, non-concurred in Stanton's suspension. Gen. Grant at once notified the president that his functions as secretary ad interim had ceased. Secretary Stanton immediately resumed his place, and kept it throughout the subsequent proceedings until May 26, when he finally relinquished it.

II.167.11

—The suspension of Stanton was a mistake, in so far as it recognized the mode of procedure laid down in the tenure of office act, since the vital point in Johnson's case was the applicability of that act to Secretary Stanton. The president, indeed, asserted that Gen. Grant had promised to hold the office in spite of the senate's non-concurrence, and thus force Secretary Stanton, by an appeal to the courts, to test the constitutionality of the act; and the assertion was sustained by all the cabinet officers except Stanton, but was denied by Gen. Grant. The plan, which had been baulked by Grant's surrender of the office to Stanton in January, was resumed in February with a more reliable instrument, and apparently with better legal advice. Feb. 13, the president desired Gen. Grant to appoint Gen. L. Thomas adjutant general, and the appointment was made. Feb. 21, the president removed Stanton, as if the tenure of office act did not apply to his case, and appointed Thomas secretary of war ad interim, under the law of Feb. 13, 1795, which allowed the appointment of such officers, in emergencies, for not more than six months, without confirmation by the senate. Stanton refused to vacate the office, and notified the speaker of the house of his attempted removal. Feb. 24, the house adopted a resolution of impeachment by a vote of 126 to 42, and on the following day a committee impeached the president at the bar of the senate. By tacit consent, all attempts to obtain possession of the war department were dropped to abide the result of the impeachment.

II.167.12

—The house managers of the impeachment were John A. Bingham of Ohio, Geo. S. Boutwell and Benj. F. Butler of Massachusetts, Jas. F. Wilson of Iowa, Thomas Williams and Thaddeus Stevens of Pennsylvania, and John A. Logan of Illinois.

II.167.13

—The president's counsel were Henry Stanbery and W. S. Groesbeck of Ohio, Wm. M. Evarts of New York, Thos. A. R. Nelson of Tennessee, and Benj. R. Curtis of Massachusetts. March 4, the managers presented eleven articles, impeaching the president of the following high crimes and misdemeanors: 1. The issuance of an order removing Stanton, with intent to violate the tenure of office act, after the senate bad refused to concur in his suspension; 2, the issuance of an order to Thomas to act as secretary of war ad interim while the senate was in session, no "vacancy existing" in the war department, with intent to violate the tenure of office act and the constitution, and 3, without authority of law; 4, conspiracy with Thomas and other persons with intent, by intimidation and threats, to prevent Stanton from acting as secretary; 5, to prevent the execution of the tenure of office act; 6, to seize the war department's property by force, and, 7, to violate the tenure of office act; 8, the appointment of Thomas with intent to control unlawfully the disbursement of the war department's moneys; 9, an attempt to induce Gen. Emory, commanding the department of Washington, to disobey the act above referred to, regulating the issuance of orders to the army; 10, the use, in regard to congress, of "utterances, declarations, threats and harangues, highly censurable in any, and peculiarly indecent and unbecoming in the chief magistrate of the United States, by means whereof said Andrew Johnson has brought the high office of president into contempt, ridicule and disgrace, to the great scandal of all good citizens"; and 11, his public declaration that the 39th congress was no constitutional congress, but a congress of part of the states, "thereby denying and intending to deny that its legislation was obligatory upon him, and that it had any power to propose amendments to the constitution," and designing to prevent the execution of the tenure of office act, the act for the government of the army, and the reconstruction acts. The last two articles were additions to the original nine articles, based upon certain speeches made by the president during a tour to St. Louis in August and September, 1866.

II.167.14

—The answer of the president, through his counsel, may be reduced to four heads. 1. As to articles 1-3, he averred that Stanton, having been appointed by President Lincoln, Jan. 15, 1862, having served out "the term of the president by whom he had been appointed," and never having been reappointed, was not embraced in the terms or the intention of the tenure of office act, of March 2, 1867; that Stanton had taken office and kept it "during the pleasure of the president," according to the terms of the act of Aug. 7, 1789, organizing the war department, and according to the practice of all presidents and congresses down to March, 1867; that Stanton's removal was not in violation of the tenure of office act; and that the appointment of Thomas was to fill an existing vacancy. 2. As to articles 4-7, he denied any conspiracy, any intimidation, or any authority to use force given by him to Thomas, and asserted that the only connection between him and Thomas was an order from him as superior and obedience to it by Thomas. 3. He denied the truth of article 8. 4. As to articles 9-11, he claimed the right of freedom of opinion and of freedom of speech; he asserted that his declarations to Emory and to public meetings were identical with his messages to congress; and called attention to the fact that the allegations in these articles did not "touch or relate to any official act or doing" of the president.

II.167.15

—The trial, beginning with the organization of the senate as a court to try the impeachment, March 5, ended March 26. Excluding the twenty senators from southern states not yet admitted, the total number of senators was fifty-four; the two-thirds vote, needed for conviction, would, therefore, have been 36 to 18. There were twelve democratic senators, all of whom were quite certain to vote not guilty, so that it was necessary that at least seven republican senators should vote against conviction on all the articles in order to secure an acquittal. Before a vote was reached it was very apparent that there were but three articles (2, 3 and 11) on which a conviction was possible. On the "conspiracy" articles (4-7), and the "Emory" article (9), the proof had failed to convince many republican senators. The "Butler" article (10) consisted of unofficial utterances of the president. On the "Stanton" articles (1, 8) several republican senators asserted that the tenure of office act was admitted at the time of its passage not to apply to President Lincoln's secretaries, Sherman, of Ohio, one of the senate conferees on the act, says in his opinion, "Can I, who still believe it to be the true and legal interpretation of those words, can I pronounce the president guilty of crime, and by that vote aid to remove him from his high office, for doing what I declared and still believe he had a legal right to do? God forbid." May 16, by order of the senate, the vote was taken on the eleventh article first, and was found to be 35 for conviction and 19 for acquittal, seven republican senators voting in the minority. The senate adjourned at once until May 26, when a vote was taken on the second and third articles, with exactly the same result as on the eleventh. The senate then adjourned sine die, without voting upon the other articles, and the chief justice directed a verdict of acquittal to be entered upon the record.

II.167.16

—The strength of the eleventh article lay in its charge that the president had not faithfully executed the tenure of office act or the reconstruction acts, his declarations that congress was "not a congress" being apparently intended to show his mala fides. Its weakness lay in its vagueness, and in the fact that it charged the president with "designing and contriving" means to avoid the execution of the law, rather than with any overt acts. As to this article, then, the difference of opinion went mainly to the meaning of the language. The second and third articles, particularly the former, seem to have been lost because of their complication with Stanton's removal, and their statement that "no vacancy existed" when Thomas was appointed. If Stanton's removal were legal, the tenure of office act would then seem to apply to his office for the first time after he had been removed; and the absolute prohibition, in the second section of the act, of ad interim appointments, except in cases of suspension, would seem to hit the case of Thomas appointment exactly, though even then there would have been a fair question whether the appointment were a high crime and misdemeanor. Those of the seven acquitting republican senators who filed opinions seem to have voted not guilty on these articles because of the "no vacancy" clause, and because a vote for conviction would have stultified their opinions on the first and eighth articles (Stanton's removal); but, even without the objectionable clause, it is extremely probable that they would still have voted not guilty on the general ground of want of evil intent in the president's action. The only conclusion to be drawn from the conduct of the whole case is that the house was too hasty in impeaching; if it had waited patiently for some overt act to complete the eleventh article, that article would have been impregnable, and it is difficult to see how conviction could have been avoided honestly.

II.167.17

—VII. WILLIAM W. BELKNAP. In February and March, 1876, the house committee on expenditures in the war department, discovered that Secretary Belknap, of that department, had for six years been receiving money for the appointment and retention in office of the post-trader at Fort Sill, Indian Territory. The total amount received was about $24,450. The house voted unanimously to impeach him, March 2, 1876, but a few hours before the impeachment resolution was passed, Belknap resigned, and his resignation was accepted by President Grant. April 4, the managers of the impeachment on the part of the house appeared at the bar of the senate, and exhibited five articles of impeachment, covering the various receipts of money charged against Belknap. In his reply the defendant claimed to be a private citizen of Iowa, and denied the power of the house to impeach any one who, by resignation or otherwise, had ceased to be a "civil officer of the United States." May 4-29, the question whether Belknap was, under all the circumstances, amenable to trial by impeachment was argued and decided in the affirmative by a vote of 37 to 29; but the vote proved the hopelessness of conviction, since the minority was too large to allow a two-thirds vote of guilty. The evidence and argument on both sides continued from July 6 until August 1, when the vote stood 36 guilty to 25 not guilty on the second, third and fourth articles, 35 to 25 on the first, and 37 to 25 on the fifth article. The majority for conviction not being two-thirds, a verdict of acquittal was entered. The vote of the minority was given on the ground of want of jurisdiction. (See TENURE OF OFFICE, RECONSTRUCTION)

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